Concurrent Sentences for State and Federal Pornography Charges

By Reddin & Singer


When an individual has engaged in the interstate transfer of child pornography, they may open themselves up to both state and federal criminal charges. While a defendant cannot be charged twice for the same crime, a defendant can be sentenced for different crimes that have somewhat overlapping elements. When a defendant is convicted of multiple related crimes, a sentencing judge must determine whether the sentences imposed will be served separately or concurrently (meaning they will be served at the same time). A recent case before the Seventh Circuit Court of Appeals looks at when a judge is required to impose a sentence concurrently and when a judge has the liberty to increase the severity of the punishment by requiring a defendant to serve sentences one after another.

In United States of America v. Schrode, Mr. Schrode was convicted of sexually assaulting his step-daughter, who was four years old at the time. He was sentenced to 18 years imprisonment by the Illinois state courts. Later that year, the FBI executed a search warrant on his home, believing that Mr. Schrode also possessed child pornography. He was found to have possessed child pornography and transmitted it to other users. A short time afterward, Mr. Schrode’s wife discovered that some of the pornography he possessed included images of his step-daughter and of his sexually assaulting his step-daughter. As a result, he was indicted on four federal charges: (1) receiving child pornography; (2) producing child pornography of his step-daughter in February 2013; (3) producing child pornography of his step-daughter in March 2013; and (4) possessing child pornography. He pled guilty to all four charges.

At the sentencing phase, his offenses were grouped into three groups. The first group included the receipt and possession of child pornography. The second and third groups contained each of the production charges, respectively. The sentencing judge acknowledged that Mr. Schrode’s prior offense for sexual assault was possibly relevant and overlapping with some of his federal charges, but the judge felt that the assault and the production of pornography were two separate offenses. Nonetheless, the sentencing judge reluctantly agreed to find the assaults relevant to the production charges and agreed to sentence Mr. Schrode to overlapping, concurrent sentences for those offenses. However, the sentencing judge declined to find the assault sentence relevant to the charges of receipt and possession of pornography and decided that those sentences would run consecutively, or after the sentence for assault was completed. Mr. Schrode appealed, arguing that all of his sentences should have run concurrently.

The Seventh Circuit held that it is the defendant’s burden to show that the conduct that led to the state conviction is relevant conduct to the federal offenses and thus supports a determination that the sentences should run concurrently. In order to be relevant, sufficient factual overlap must exist between the state and federal offenses. While the United States Sentencing Guidelines permit courts to order concurrent sentences when factual overlap exists, the point, according to the Seventh Circuit, is to prevent a defendant from being punished twice for the same offense, so the offenses should be quite similar. Here, the Seventh Circuit noted that the actions taken by Mr. Schrode were arguably factually similar to the facts that led to his child pornography production charges. However, the child pornography received and transmitted by Mr. Schrode involved entirely different victims and images, and thus it had no factual overlap with Mr. Schrode’s state law charge. Accordingly, the Seventh Circuit held that the sentencing judge did not err in declining to apply Mr. Schrode’s receipt and transmission sentences concurrently.

If you are facing possible charges for a crime that involves both state and federal violations, it is important to know that you cannot be convicted twice for the same crime. However, when multiple charges may be available to address different elements of your alleged actions, it is possible that you may face multiple criminal sentences. In these circumstances, an experienced criminal defense attorney can help you advocate for concurrent sentences, rather than consecutive ones. To find out more about your options for contesting your sentence, do not hesitate to contact the experienced Milwaukee child pornography lawyers at Reddin & Singer, LLP online or give us a call at (414) 271-6400.